Article 36/2022

On what basis did the labour appeal court recently, in SA Teachers Union obo Kruger v Gauteng Department of Education and Others (2021) 32 SALLR 12 (LAC); (2021) 42 ILJ 827 (LAC), determine that the remedies of compensation and reinstatement cannot be granted simultaneously?

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The principles identified by the court entail, amongst others, the following:

in the case of a dismissal for misconduct or incapacity: being substantively or substantively and procedurally unfair

  • the primary relief is reinstatement or re-employment
  • the employee is to resume employment on the same terms and conditions as at the date of dismissal
  • the extent of retrospectivity is dependent on the discretion to be exercised by the arbitrator – the only limitation on such discretion is that it cannot be fixed earlier than the actual date of dismissal
  • compensation is an alternative relief to the primary relief and is mutually exclusive to the remedies of reinstatement/re-employment

dismissal for operational requirements/automatically unfair: substantively or substantively and procedurally unfair

  • the same principles as set out above apply here subject to s193(3) of the LRA – in addition, any other order may be made as considered to be appropriate

dismissal for misconduct/incapacity/operational requirements/automatically unfair: procedurally only unfair

  • in terms of s193(2)(d) of the LRA, no reinstatement/re-employment is applicable but only compensation

With reference to Potgieter v Samancor Chrome Ltd t/a Tubatse Ferrochrome (2022) 33 SALLR 190 (LC) and Van Rensburg and Others v Department of Justice and Correctional Services and Others (2022) 33 SALLR 280 (LC); (2022) 43 ILJ 2110 (LC).

In what instances does the jurisdiction of the supreme court of appeal trump the jurisdiction of the labour appeal court?

Where an employer prematurely terminates a fixed-term contract and the employee challenges such termination as being unlawful and claims damages and not specific performance, the labour court has up to now ordered damages even though same is an unliquidated claim for damages.